If a property owner loses their property through a foreclosure sale initiated by someone who did not validly own the debt, has the property owner automatically suffered enough “prejudice” to pursue a claim for wrongful foreclosure? Or does the property owner also need to show that it would have been able to avoid foreclosure by paying the debt to the true lender?

The California Supreme Court’s recent Yvanova decision (reviewed on Money and Dirt here: California Supreme Court: Borrowers Have Standing to Allege Wrongful Foreclosure Based on Void Assignment of Note) only partially addressed the “prejudice” issue. In Yvanova, the Supreme Court discussed prejudice, but only “in the sense of an injury sufficiently concrete and personal to provide standing,” not “as a possible element of the wrongful foreclosure tort.” The Court held that the plaintiff in that case demonstrated sufficient prejudice — lost ownership of property in an allegedly illegal foreclosure sale — to confer standing to pursue a wrongful foreclosure claim.

A recent opinion by the California Court of Appeal (Fourth District, Division One, in San Diego) — Sciarratta v. U.S. Bank National Association — picks up the “prejudice” analysis where Yvanova left off, and addresses prejudice as an element of a wrongful foreclosure claim.

The facts: a twisted tale of note assignments

In 2005, the property owner obtained a $620,000 loan secured by real property in Riverside County. The note and deed of trust identified the lender as Washington Mutual (WaMu).

In April 2009, JPMorgan Chase Bank (Chase), as successor in interest to WaMu, assigned the note and deed of trust to Deutsche Bank. The trustee promptly recorded a Notice of Default, followed by a Notice of Sale.

In November 2009, Chase recorded a document assigning the note and deed of trust to Bank of America (even thought just months earlier, Chase had already assigned the note and deed of trust to Deutsche Bank — oops!). On the same date as the assignment, Bank of America recorded a Trustee’s Deed, reflecting that Bank of America had acquired the property at a trustee’s sale in exchange for a credit bid.

In December 2009, Chase recorded a “corrective” assignment of the note and deed of trust, suggesting that the April 2009 assignment to Deutsche Bank was a mistake, and was really intended to be an assignment to Bank of America.

The property owner sued the banks and the trustee for wrongful foreclosure.

The trial court’s ruling: no prejudice; case dismissed

The banks filed a demurrer, arguing that the property owner could not allege “prejudice,” which is an essential element of a wrongful foreclosure claim.

The trial court sustained the banks’ demurrer and dismissed the case.

The property owner appealed.

The court of appeal’s opinion

The Court of Appeal reversed, holding that a property owner who loses property to a foreclosure sale initiated by someone purporting to exercise rights under a void assignment suffers enough prejudice to state a claim for wrongful foreclosure.

The court first relied on the Supreme Court’s holding in Yvanova that “only the entity currently entitled to enforce a debt may foreclose on the mortgage or deed of trust securing that debt.” In this case, based on the clear paper trail of assignments, the entity entitled to enforce the debt was Deutsche Bank, but the entity that foreclosed was Bank of America.

Based on the complaint’s allegations, the court noted, the assignment was not merely voidable but void. The court observed, “Chase, having assigned ‘all beneficial interest’ in [the property owner’s] notes and deed of trust to Deutsche Bank in April 2009, could not assign again the same interests to Bank of America in November 2009.”

The court concluded that a property owner “who has been foreclosed on by one with no right to do so — by those facts alone — sustains prejudice or harm sufficient to constitute a cause of action for wrongful foreclosure.” The court added:

The critical issue is not the plaintiff’s ability to pay, but rather whether defendant’s conduct resulted in the plaintiff’s harm; i.e., a foreclosure that was wrongful because it was initiated by a person or entity having no legal right to do so; i.e. holding void title.

The court also offered policy grounds supporting its decision. The court’s ruling would encourage “lending institutions to employ due diligence to properly document assignments and confirm who currently holds a loan.” A contrary ruling, on the other hand, would subject property owners to unfairly losing their property in foreclosure to someone who does not even own the underlying debt, with no court oversight.

Lesson

The Sciarratta decision will make it easier for property owners to assert wrongful foreclosure claims…….

On June 22, 2016, the parties advised the Court of the settlement in principle. The Court has therefore adjourned the trials, pending approval of the final settlement.

As previously disclosed, the Fisher Cases involved allegations bought by private citizens on behalf of the United States that alleged in substance that Ocwen violated the False Claims Act by falsely certifying as to compliance with applicable laws and regulations in connection with Ocwen’s participation in the United States Treasury’s HAMP and FHA insurance programs. The complaints in the Fisher Cases sought damages including (i) an award equal to three times the total HAMP incentive and FHA insurance payments made by the United States on Ocwen serviced loans and (ii) statutory penalties of between $5,500 and $11,000 per alleged false claim. Ocwen was vigorously defending itself against these allegations and believes it has sound legal and factual defenses to these allegations.

The United States Department of Justice has agreed to seek final approval of the settlement in principle. Subject to documentation of a definitive settlement and final approval by the United States, the settlement includes the following terms:

� No admission of liability or wrongdoing by Ocwen

� Payment of $15 million to the United States and $15 million for the private citizens’ attorneys’ fees and costs.

Ocwen agreed to the settlement, notwithstanding its belief that it has sound legal and factual defenses, in order to avoid the uncertain outcome of two trials and the additional expense and management time involved. Accordingly, we have accrued $30 million with respect to the settlement in principle because we believe this amount is both probable and reasonably estimable based on current information. There can be no assurance that the settlement in principle will be finalized and approved by the United States and the Court. In the event the settlement in principle is not ultimately finalized and approved, the Fisher Cases would continue and we would vigorously defend the allegations made against Ocwen. If our efforts to defend were not successful, our business, financial condition, liquidity and results of operations could be materially and adversely affected.

As part of your document warchest everyone in danger of FC should demand copies of the ESTOPPEL LETTER (or ESTOPPEL CERTIFICATE) that corresponds to each assignment connected to your note in the form of a QWR (qualified written request) to your mortgage servicer. They are required by federal law to give you a copy on request… The simple truth is that you cannot assign/sell a note without knowing the payoff to the seller and that’s what the estoppel letter is. Not having an estoppel letter on file is extremely strong evidence that no sale took place.

This is only opinion. I have not tried anything and I have no advice with to try.

Standing to sue is a basic requirement for the court to have subject matter jurisdiction.
It’s almost as if they can’t even tell the court they have jurisdiction of venue without having standing to sue in the venue.
Subject matter jurisdiction can be challenged at any time.

Did I say statute of limitations?
What part of ‘any time’ is a limitation?

Subject matter jurisdiction is key to a court’s ability to hear a case.
Do one of those case law searches on subject matter jurisdiction and elements and see what you come up with for your area.

A motion can be entered into a case, and scheduled for hearing.
A subject matter jurisdiction challenge is done by motion.

On appeals, I think a subject matter jurisdiction challenge is heard de novo. [possibly giving someone that hard-to-get chance to put in those things that you forgot when you didn’t challenge the subject matter jurisdiction].

I know nothing. If I think I know something I know nothing.
I do not give legal advice because I do not know legal things.

Thank you for your time and effort in tearing apart the Illinois Bassman
case. That was my next project, knowing the appellates in that case
relied upon personal trusts only and made half-arguments because
Bassman failed to make the right argument, unfortunately, and judges
are quite adept at turning wrongly made or incomplete arguments on
their head.

Another [proper] but exhausting argument, just to [beg] for the right to have [standing] to try to defend ourselves under a wrongful foreclosure complaint. That argument can be difficult and uncertain, hence the need for appellate intervention.

neil i just sent you a case in mass, on that same thing. look at what the case said.

COMMONWEALTH OF MASSACHUSETTS
COURT OF APPEALS
NO. 2015-P-1259
U.S. BANK, N.A., AS TRUSTEE FOR RASC 2006KS9
Plaintiff-Appellant
V.
WENDY BOLLING
Defendant – Appellee
ON APPEAL FROM A FINAL JUDGMENT OF
THE WESTERN HOUSING COURT
APPELLEE’S OPENING BRIEF

@ david belanger
posted re US Bank v. Bolling (2015), Mass. opinion
A homeowner’s standing and duty to defend title, by challenge to a void assignment, is affirmed.
Appears that the Kalifornia and Mass. courts are in alignment.
David Belanger, on June 22, 2016 at 8:09 am said:
In the review to follow of the 10 cases cited by Bassman, (an Illinois Court attempting to interpret N.Y. Law) incorrectly claimed documented NY Courts’ interpretation of ultra vires transfers by Trustees as
voidable. Bassman argued given NY Courts’
inconsistency, that without a party voiding illegal transfers into NY Securitized Trusts, the Court cannot
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determine that a break in the chain of title to the mortgage exists. However, 6 cases were simply inapposite; none upheld a “voidability” interpretation of attempted ultra vires transfers; and two actually upheld NY EPTL 7-2.4 after Court scrutiny.
In fact, even Bassman first admits the long lineage of NY rulings voiding ultra vires transfers into express trusts under EPTL 7-2.4.
“If this statute controls, the transfer of the mortgages to the trust would appear to be a nullity (we note that this statute has been in effect in New York in some form since at least 1870 (see Anderson v. Mather, 44 N.Y. 249 (N.Y.1870))). Moreover, this is the sort of defense — namely, that the transaction is void under the statute — that defendants would be permitted to raise. Livonia Property Holdings, 717 F.Supp.2d at 735. Indeed, several New York courts have applied the statute, or its predecessors, in such a manner. See, e.g., In re Application of Dana, 119 Misc.2d 815, 465 N.Y.S.2d 102, 105 (N.Y.Sup.Ct. 1982); Dye v. Lewis, 67 Misc.2d 426, 324 N.Y.S.2d 172, 175
(N.Y.Sup.Ct.1971).”
For EPTL § 7-2.4 to apply, a Trust must have a controlling instrument12. The Defendant Trust indisputably has a “controlling instrument” by which it was purportedly established; the PSA.
Six of the decisions Bassman cited did not address express Trusts at all and are inapposite.
Three involved sections of NY Law unrelated to trusts:
12 Footnote EPTL 7-2.4 again
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National Black Theatre Workshop Inc. v. Nubian
Properties LLC, 89 A.D.3d 518, 932 N.Y.S.2d 466, 467 (2011) does not involve a Trust; Conservative Party of the State of New York v. New York State Board of
Elections, 170 Misc.2d 885, 652 N.Y.S.2d 463, 465
(N.Y.Sup.Ct.1996) revolved around interpretation of NY Const, art I, § 1 related to the Trust of voters in elections; Aronoff v. Albanese, 446 N.Y.S.2d 368, 370
(App. Div. 1982) is based on NY corporate law to which EPTL 7-2.4 cannot apply as business common law trusts do not exist in NY13.
Three cases involved implied trusts. Greagan v. Buchanan, 15 Misc. 580, 37 N.Y.S. 83, 85 (N.Y.Sup.Ct. 1896) involved the acts of a court appointed administrator after a man died intestate. Hine v. Huntington, 118 A.D. 585, 103 N.Y.S. 535, 540 (1907) has to do with the disposition of a remaining piece of property from an estate foreclosed by the executors in trust for the remaining heirs, themselves and their sister. Washburn v. Rainier, 149 A.D. 800, 134 N.Y.S. 301, 304 (1912) involves an unfulfilled debt and the transfer of assets and liabilities through a contract
13 The only place in NY law where business trusts are referenced is in tax statutes created to cover such out of state trusts since other states allow them.
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before that debt was fulfilled by the adjudicated debtor.
4. Courts have a Role Even When Ultra Vires
Actions are Void
The remaining 4 cases that Bassman analyzed do involve “express trusts” that is trusts with founding documents that are covered by NY EPTL § 7-2.4 which makes ultra vires attempts to transfer assets void. In two of these four cases, the Court after analysis declared the ultra vires acts void. But even though transfers into an express trust are covered under NY EPTL § 7-2.4, there is a role for the Courts when there is disagreement on the interpretation of the Trust documents or for fact-finding. An act may be outside the scope of the Trust document and require judicial interpretation14. After fact-finding, questionable acts may be found to be ultra vires and void but have had such impact that the Court needs to determine additional equitable resolution.
In Feldman v. Torres, 939 N.Y.S.2d 221, 224 (App.
14 In these remaining Bassman citations, the Trust Documents may allow beneficiaries to ratify otherwise ultra vires acts by the Trustee rendering them no longer ultra vires. With no access to case documents see if such ratification is included, Defendant addresses the legitimate judicial role of the Court without undermining NY EPTL 7-2.4 regardless of the Trust documents’ specifics.
David Belanger, on June 22, 2016 at 8:09 am said:
trust according to the PSA. The assignment was void under New York state law, N.Y. Est. Powers & Trusts Law § 7-2.4. Also, the plaintiff failed to provide any evidence that the Howe mortgage was on the schedule of loans in an exhibit for the PSA as required in U.S. National Association v. Ibanez, 458 Mass. at 650-51.”
In U.S. Bank v. Hoynoski, Western Housing Court,
No. 11-SP-3965 (Nov. 8, 2012), the court determined:
“If, as alleged by Hoynoski “upon information and belief,” the mortgage at issue here was subject to a pooling and servicing agreement that involved a trust formed under New York law, the terms of which were contravened by the assignment of the subject mortgage into the trust such that the assignment was void ab initio under New York law, NY CLS EPTL §7-2.4, the Bank arguably would not have acquired good title and would have no superior right to possession herein. This analysis does not implicate third party beneficiary status; rather it involves a direct challenge to a prima facie element of the Bank’s case, namely that it holds good title.”
And in Deutsche Bank as Trustee v. Collins, et al, Worcester Housing Court, 1185-SP-5095 (July 18,
2013), Judge upheld Defendants’ Motion for Summary Judgment “for reasons set forth”. These included:
“This assignment which the plaintiff offers as part of their prima facie proof of standing does not comply with the Pooling and Servicing agreement…. the PSA says that for loans – both the note and the mortgage – to get into the trust they would have to have been assigned to Sheffield Receivables Corporation, Sutton Funding, LLC, Securitized Assets Backed Receivables, LLC before being transferred into the trust. This assignment … goes from MERS to Deutsche Bank … as Trustee…. It only mentions New Century Mortgage Corporation. Neither MERS
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nor New Century Mortgage Corporation are any of the parties required to transfer a mortgage into the Trust….
“the closing date for the Trust was on or about June 14, 2007; the PSA allows only an additional 90 days beyond June 14, 2007 for any loan to have been reviewed and rejected. This assignment … happened on July 28, 2009. The trust was already closed … no evidence of the transfer of the Note. …
“As NY Trust law explicitly voids any transfer of assets in contravention of the Trust’s instrument, this assignment is void as a matter of law. Deutsche Bank … as Trustee … did not, therefore, own the mortgage and therefore, did not have the power to exercise the power of sale in the mortgage. The foreclosure is therefore void. Plaintiff lacks standing to bring this eviction action.”
Glaski v. Bank of America, No. F064556 (7/31/13,
Cal. 5th App. Dist.), Saldivar v. JPMorgan Chase, 2013 WL 2452699 (Bky. S.D. Texas 6/5/13) and HSBC Bank USA,
National Association, et al. v. Marra, No. 2008 CA 000630 NC (Aug. 14, 2013) give weight to the clear language of New York EPTL § 7-2.4; they voided these foreclosures because of ultra vires acts. From
Saldivar:
“Under 28 U.S.C. § 1652, this Court has the duty to apply New York law in accordance with the controlling decision of the highest state court. Royal Bank of Canada v. Trentham Corp., 665 F.2d 515, 516 (5th Cir. 1981). While the Court finds no applicable New York Court of Appeals decision… See Wells Fargo Bank, N.A. v. Erobobo, et al., 2013 WL 1831799 (N.Y. Sup. Ct. April 29, 2013). In Erobobo, defendants argued that plaintiff (a REMIC trust) was not the owner of the note because plaintiff obtained the note and mortgage after the trust had closed in
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violation of the terms of the PSA governing the trust, rendering plaintiff’s acquisition of the note void. Id. at *2. The Erobobo court held that under § 7-2.4, any conveyance in contravention of the PSA is void… Based on the Erobobo decision and the plain language of N.Y. Est. Powers & Trusts Law § 7-2.4, the Court finds that under New York law, assignment of the Saldivars’ Note after the start up day is void ab initio.”
Once a Trust is created under NY Common Law Trust statute as specified in Plaintiff’s PSA, it is controlled by EPTL § 7-2.4 for all the world not just the investors for whom the Trust complied with REMIC code3 (A000417)
See Mendenhall the most recent decision from NY above:
“Defendants allege, inter alia, that the acceptance of the asset, viz. the note and mortgage at issue, by the Trustee was actually accomplished in a manner other than that either prescribed or permitted by the … PSA, which is the controlling instrument for the REMIC…. it inexorably follows that the acts taken by the Trustee were clearly ultra vires and therefore would necessarily be void ab initio.
“For well over one hundred years, it has been the law in New York that where the transfer of a mortgage to a third party is effectuated in a manner that contravenes the express terms of a governing trust, the transfer is ultra vires and is void, Kirsch v. Tozier 143 NY 390 (1894)…, all successors and subsequent assignees are charged with constructive knowledge of the express terms of the trust and hence cannot claim to be bona fide purchasers thereafter inasmuch as they would either know or would have reason to know that any interest transferred would be subject to the operative terms of the trust, Smith v. Kidd 68 NY 130 (1877), McPherson v.
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Rollins 107 NY 316 (1887).”
As the Massachusetts decision in HSBC as Trustee
v. Howe, et al, Malden Court District, No. 1350-SU-0237 (Sept. 18, 2014) stated:
“For well over one hundred years, it has been the law in New York that where the transfer of a mortgage to a third party is effectuated in a manner that contravenes the express terms of a governing trust, the transfer is ultra vires and is void, Kirsch v. Tozier, 143 N.Y. 390, 38 N.E.
375 (1894)….
None of these cases mentioned or distinguished Kirsch v. Tozier, 143 N.Y. 390, 38 N.E. 375 (1894), in which the Court of Appeals stated: “[A]ny act thereafter done by [the trustee] in contravention of the trust was by the common law and by the statute void. (St. Uses and Trusts, 1 Rev. St. §65.)”.
The second set of decisions Plaintiff-Appellant relies heavily upon are Rajamin v. Deutsche Bank Nat. Trust Co., 757 F. 3d 79 (2nd Cir. 2014) and its progeny or Dernier v. Mortgage Network, Inc. 87 A.3d
465 (Vt. 2013) out of Vermont; to argue that “most” Courts have found violations of Pooling and Servicing Agreements voidable not void. However, both the citations to Bank of American Nat’l Assoc. v. Bassman
FBT, L.L.C., et al. 981 N.E.2d 1, 7 (Ill. App. Ct.
2012)’s flawed survey of New York jurisprudence in Dernier and the specific cases from Bassman that
Rajamin rely upon do not reflect decisions of only
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express NY Common Law Trusts. In fact, Rajamin does not address NY EPTL 7-2.4, the specifically applicable statute to express Trusts with founding documents, nor addresses Erobobo to distinguish it.
The basis for claiming dissension among NY decisions is an assessment by the Illinois Bassman Court (given their “exhaustive search” of NY decisions) that the NY record was inconsistent in the application of EPTL 7-2.4 voiding acts by Trustees that contravene the “trust” documents.
The high court decisions across the US that claim that NY courts are inconsistent in voiding ultra vires actions of express trusts depend upon the Bassman case review. The Vermont SJC in Dernier did decide for the mortgagor but did not rely on NY EPTL § 7-2.4; they felt based on Bassman that the NY courts were split on the void or voidability of ultra vires acts.
David Belanger, on June 22, 2016 at 8:07 am said:
Unlike Wilson’s allegations above, Bolling’s allegation regarding the Governing Instrument for the Plaintiff Express Trust; clearly does not
speculatively attack any signatory authority on an assignment to support its voidness, but rather the specific trust law legal theory that Bolling relies upon a void, not voidable, assignment.
In re Sheedy, 801 F.3d 12 (1st Cir. 2015) involved an appeal of a bankruptcy matter challenging a “proof of claim”, the particular allegations regarding the “PSA” made by Sheedy, unlike Plaintiff’s allegation, merely involved Sheedy’s allegation that flatly pled that “the assignment violated the PSA”, with no apparent plausible argumentation as to why this was
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so, and also failed to even allege that the assignment was void.6:
“Sheedy’s standing challenge is that Deutsche Bank cannot enforce the Mortgage against her because it was transferred into the Securitized Trust in violation of the PSA, six years after the trust was created. Sheedy cannot question Deutsche Bank’s status as her creditor unless she “challenge[s] a mortgage assignment as invalid, ineffective, or void[,]” rather than as an assignment that is only “voidable.” Culhane v. Aurora Loan Services of Nebraska, 708 F.3d 282, 291 (1st Cir. 2013). Yet a valid challenge for violations of the terms of a PSA would result in the assignment being voidable and not void. Butler v. Deutsche Bank Tr. Co. Americas, 748 F.3d 28, 37 (1st Cir. 2014) (“Under Massachusetts law, it is clear that claims alleging disregard of a trust’s PSA are considered voidable, not void.”).” Sheedy, at 26.
Unlike Wilson, the Housing Court here, relied on the specific legal grounds for Bolling’s possession, that the Plaintiff Trustee relies upon void recorded assignments. Unlike Wilson, Bolling’s Note and Mortgage, this asset, clearing outside any claim by the Plaintiff Trustee that the same is a current legally held corpus asset of the Plaintiff Trust.
The Housing Court’s decision rest upon these well-reasoned examination of undisputable facts that preclude the Plaintiff Trustee from exercising
6 Thus, mirroring the type of defective pleadings described in Ashcroft v. Iqbal, 556 U.S. 662 (2009), as referenced by Twombly. Sheedy’s specific allegation involved third party rights, which were clearly not redressable to any injury to him/her.
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contractual rights in the Plaintiff’s mortgage, and therefore, left the Plaintiff Trustee unable to utilize the statutory remedy given that the
Assignments that the Plaintiff Trustee relies upon are void.7 Plaintiff Trust fails by ignoring the fact that the Plaintiff Trustee is, in fact, not in current contractual privity with her.
The apparent foundational basis for the
historical “voidable” PSA argument Plaintiff Trust trots out can be traced back to citation of pleadings alleged by a specific borrower in an appeal of a bankruptcy matter before the Bankruptcy Appellate Panel, where that borrower specifically alleged claims related to third party(s) rights, that he was not a party to.8 It directly cited to Wilson [which advanced different allegation than Bolling], and Butler v.
Deutsche Bank Tr. Co. Americas, 748 F.3d 28 (1st Cir.
2014) for authority. Butler also involved a Motion to
Dismiss, under Fed. R. Civ. P., R. 12(b)(6), and which
7 Indeed, please reference G.L. c. 183, §21, requiring that the foreclosing entity comply with the terms of the mortgage first, then with all statutes related to foreclosure, see also G.L. c. 244, §14, last paragraph.
8 Indeed, there may be questions whether a Bankruptcy Appellate Panel even had subject matter jurisdiction to reach this issue at all, see In re Correia, 452 B.R. 319, at n. 3, (1st Cir. BAP 2011).
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also involved Butler’s particular allegation, this Court noted:
“Under Massachusetts law, it is clear that claims alleging disregard of a trust’s PSA are considered voidable, not void. See Woods, 733 F.3d at 354 (“[C]laims that merely assert procedural infirmities in the assignment of a mortgage, such as a failure to abide by the terms of a governing trust agreement, are barred for lack of standing.”); Wilson, 744 F.3d at 10 (“[W]hen a corporate officer acts beyond the scope of his authority, his acts in excess of [that] authority, although voidable by the corporation, legally could be ratified and adopted by it.”) (alterations and quotation marks omitted) (quoting Comm’r of Banks v. Tremont Trust Co., 259 Mass. 162, 179–80, 156 N.E. 7, 14–15 (1927)); cf. Culhane, 708 F.3d at 291 (allowing for standing where claims are predicated on the theory that “the assignor had nothing to assign or had no authority to make an assignment to a particular assignee”). Thus, having only presented facts sufficient to show the assignment was voidable under Massachusetts law, Butler lacks standing to challenge Deutsche Bank’s possession of the mortgage on this ground. Culhane, 708 F.3d at 291. Absent such standing, this theory as to the invalidity of Deutsche Bank’s possession cannot form the basis for relief.” Butler, at 37
Again, the foundational basis for Plaintiff Trust’s citation to Butler, related to claims regarding the PSA are “voidable” above, was predicated upon Woods v. Wells Fargo Bank, N.A., 733 F.3d. 349, at n. 4. In Woods, which matter also involved a Motion to Dismiss Woods’s particularized
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pleadings9:
“Insofar as Wood’s amended complaint also suggests that the assignments were in violation of the trust’s Pooling and Servicing Agreement, we find that no standing exists as to these alternate claims, which would render the assignment only voidable. See, e.g., Koufos v. U.S. Bank, N.A.,
415 B.R. 8, 22 (Bankr. D. Mass. 2009)..”
Thus the foundational basis for Plaintiff Trust’s citation to Woods v. Wells Fargo Bank, N.A., 733 F.3d. 349, at n. 4 was predicated citation to 415 B.R. 8,
[being incorrectly titled as Koufos v. U.S. Bank, N.A.]10. In fact, reviewing the particular pleadings of the borrower in this bankruptcy matter, [Gifty Samuels], at p. 22, this borrower specifically alleged the following, with regard to the PSA:
“Second, the Debtor argues that the PSA required that all mortgages acquired thereunder to be funneled to Deutsche Bank, as pool trustee, through the entity designated by the PSA as “depositor,” ARSI. A failure to follow this protocol—such as by direct assignment of the mortgage from the loan originator to the pool trustee, bypassing the depositor— would, the Debtor contends, constitute a breach of the PSA, a
9 Additionally, case citation related to a corporate officers “ultra vires” acts being later ratified, has no application to the Housing Court’s determination under trust law theory, and where Plaintiff Trust’s Governing Instrument precludes the beneficial owners of the Trust from later ratifying any act of the Trustee.
10 The Woods opinion errs in its caption to the citation at “415 B.R. 8”, as being titled “Koufos v. U.S. Bank N.A”, as this citation indisputably references a bankruptcy matter captioned “In re Gifty Samuels”,
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breach of fiduciary obligations under the PSA to investors, a breach of federal regulations, and an act giving rise to unfavorable tax consequences for the investors. The Debtor argues that because the Confirmatory Assignment is a direct assignment from Argent to Deutsche Bank that bypasses the depositor, it must be invalid. This argument falls far short of its goal. Even if this direct assignment were somehow violative of the PSA, giving rise to unfavorable tax, regulatory, contractual, and tort consequences, neither the PSA nor those consequences would render the assignment itself invalid. In fact, under the Debtor’s own argument, the unfavorable consequences could and would arise only if, and precisely because, the assignment were valid and effective.” In re Samuels, at p. 22.
David Belanger, on June 22, 2016 at 8:06 am said:
actually owned the loan that was purportedly being transferred thereunder, and Ibanez at 650-651.4
The SJC affirmed that a transfer of interest in property, whether deed or assignment, occurs on the date it occurs and only upon that date. A later assignment cannot be made effective on a previous date whether by “back-dating” or later ratification.
The Housing Court correctly decided that under the particular terms of the instant Plaintiff common law express trust, the beneficial Certificateholder owners have no legal right to “ratify” any act of the Plaintiff Trustee:
“Section 11.03… Limitation on Certificateholders… (b) No certificateholder shall have any right to vote (except as expressly provided herein) or in any manner otherwise control the operation and management of the Trust Fund, or the obligations of the parties hereto,…
Certificateholders from time to time as partners or members of an association; nor shall any Certificateholder be under any liability to any third person by reason of any action taken by the parties to this Agreement pursuant to any provision hereof.”
It is indisputable that the purported recorded “assignments that Plaintiff purports to rely upon, facially contravene the controlling term requirements
4 Such prescient finding by the SJC, clearly comports with the requirements as set out under the Plaintiff Trust’s Governing Instrument above.
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for there to have been any legal conveyance of the Bolling note and mortgage as assets.
As Defendant-Appellee is not aware of any controlling authority sounding in Trust Law that would stand for the proposition that where an asset was not conveyed to a trust under the controlling terms of the trust’s governing document, that this would witness a “voidable” assignment, especially where such
conveyance purportedly took place to create the trust, and where here under the peculiar dictates of the individual Governing Instrument in question, the beneficial owners lacked any legal authority to
“ratify” any such act,.
2. The Historical Decisions From The Appellant Trust Regarding Borrowers Reliance Upon The “PSA” Indisputably Advanced Different Legal
Theory And Claims For Relief, Nowhere Alleged
By Defendant
Plaintiff-Appellant’s case law decisions that it relies upon claiming to refute the Housing Court’s decision, include; Woods v. Wells Fargo Bank, N.A.,
733 F.3d.349, 354 (1st. Cir. 2013), Wilson v. HSBC
Mortgage Servcs., Inc., 744 F.3d, 1, 10 (1st. Cir.
2014), Culhane v. Aurora Loan Servcs of Neb., 708 F.3d. 282, 291 (2013), Butler v. Deutsche Bank Trust co. Americas, 748 F.3d. 28, 37 (1st cir. 2014).
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These cases are founded upon legal theory and allegation raised by other borrowers in these cited matters, which are completely distinct from the basis of the Housing Court’s decision. The genesis of the Securitized Trusts’ citations have held that a borrower “lacks standing” to “enforce” the PSA, is from the citation in Woods, at n. 4, which cites to solely to In re Gifty Samuels, 415 B.R. 8, 22 (B.A.P. 2009), [incorrectly captioned as Koufos v. U.S. Bank, N.A.].
The Plaintiff Trustee’s attempts to discredit the Housing Court’s finding in favor of Bolling, are mistakenly based upon arguing that these other cases stood for the proposition that borrowers lacked the legal standing to attack a mortgage foreclosure based upon claimed deficiencies under a PSA, regarding an assignment of mortgage and that based upon these case law citations, any issue with the assignment would render it merely voidable at the election of the parties to the transaction as opposed to being void. Rather, these other case law citations, involved completely different allegations and claims [as they sought relief based upon injury to third parties, see
Samuels, at p. 22]. However, unlike Samuels [and its
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progeny], Bolling never made these same allegations regarding the PSA. Indeed, none of these matters cited to by Plaintiff, ever considered, discussed, or even examined pleadings making the precise argument as advanced by Defendant.
In particular, Plaintiff Trust’s citations are based upon other borrower allegations and attempt to erase clearly distinguishable claims and to treat all borrowers as advancing precisely the same legal theory and allegation regarding the PSA.
For example in Wilson v. HSBC Mortg. Servs., Inc., 744 F.3d 1, 7-14 (1st Cir. 2014), the first circuit made a specific examination of the
plausibility of Wilson’s pleadings in particular5:
“The reasoning behind the Wilsons’ argument that the 2009 Assignment is void runs as follows: Strauss is an employee of HSBC; Strauss executed the 2009 Assignment; when Strauss executed the assignment, she did so as an employee of HSBC; therefore, MERS never assigned the mortgage to HSBC. The Wilsons’ own Complaint, however, flatly contradicts this position, as it explicitly alleges that “[t]he March 19, 2009 assignment from MERS to [HSBC] was executed by Shelene Strauss, as Vice President of MERS.” Thus, the Complaint actually alleges that Strauss wore multiple hats, serving both as an employee of HSBC and an officer of MERS. Significantly, the Complaint does not allege that such dual agency violates the common
.5 See Wilson also at pp. 10-11; “The parties, having taken standing for granted with respect to the 2009 Assignment, have not presented any extensive argument with respect to that issue”.
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law or any statute or applicable regulation. Accordingly, the facts set forth in the Complaint actually describe a valid assignment from MERS to HSBC. While this defective pleading is likely enough on its own to doom the Wilsons’ first six counts, it is not the only thing we have to go on. We also have available for consideration the text of the 2009 Assignment. According to the Wilsons, “there is no indication that Ms. Straus[s] executed the assignment with purported authority from MERS.” This statement is simply incorrect: the 2009 Assignment clearly identifies MERS as the assignor and HSBC as the assignee.”
Unlike Wilson’s allegations above, Bolling’s allegation regarding the Governing Instrument for the Plaintiff Express Trust; clearly does not
speculatively attack any signatory authority on an assignment to support its voidness, but rather the specific trust law legal theory that Bolling relies upon a void, not voidable, assignment.
David Belanger, on June 22, 2016 at 8:05 am said:
Additionally, the controlling terms of the Governing Instrument PSA, clearly identify that it was the title of Depositor to the mortgage loans that was sold to the Defendant Trustee that would become the legally held corpus assets of the Trust, see at Section 2.01(a) [SA051]. The Depositor is indisputably defined as Residential Asset Securities Corporation [SA007, at para. Above “Preliminary Statement”]. Thus, the Pooling and Servicing Agreement provides indisputable evidence of the strictly-required,
3 Even pre-Eaton, the SJC found that a mortgage holder singly could not undertake any affirmative autonomous act, nas such purported entity would only act in a reversionary trust capacity, see Eaton, at n. 10.
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purported intermediate transfers of the title to the Plaintiff’s mortgage, which never took place on or by the temporal date certain the date “Closing Date”, as correctly identified by the Housing Court Judge.
Specifically, where utilizing the statutory remedy under G.L. c. 244, §14, where Defendant proffered no legally tangible indicia that the Trust was ever legally possessed of any legal ownership of Defendant’s mortgage and note, as legally held corpus assets of the “Trust Fund”, the Plaintiff Trustee is indisputably left in want of being in contractual privity with Defendant, and therefore precluded from utilizing the statutory remedy under G.L. c. 244, §14, and G.L.
c. 183, §21. Should the Plaintiff Trustee seek to rely upon decisional case law indicating that the “beneficial owners of the Trust could always later “ratify” and Ultra Vires act by the Trustee, Section 11.03(b); unlike previous PSA examinations before other judicial tribunals, the particular and peculiar PSA before the Housing Court contains specific controlling terms affirmatively stating there is a “Limitation of Rights of the Certificateholder” beneficial owners, precluding them from engaging in or; “in any manner otherwise control the operation or management of the Trust Fund, or the obligations of the parties thereto” [SA 101]. Thus, the Plaintiff Trustee cannot rely upon previous decisional case law opining that the “beneficial owners could always later “ratify” any act of the Trustee, is not applicable to the instant PSA, under the above referenced limitation terms. Further, Section 11.04, indisputably avers that the Governing Law to be applied to the Governing Instrument controlling terms is indisputably New York Law, [SA101], To drive the point home that in fact this is a Governing Instrument of a Trust, and not a “contract among the parties thereto, please reference the PSA at Article X, at (a)(2)
“provided however that in no event shall the trust created hereby continue beyond the expiration of 21 years from the death of the last survivor of the descendants of Joseph P. Kennedy, the late
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ambassador of the United States to the Court of St. James, living on the date hereof…” [SA094].
Thus, the Housing Court Judge’s findings in this matter indisputably does not make any finding that the Plaintiff seeks to “enforce the PSA”, and arguments otherwise made by Defendant otherwise are disingenuous at best
Thus, where it was the title of the Depositor to the mortgage loans that was to form the legally held corpus assets of the Plaintiff Trust, this would make the Depositor the “Settlor” of the Trust. The PSA requires a temporal date certain for a legal conveyance of assets to the Trust, such that the same would become legally held corpus assets constituting part of the “Trust Fund”. Pursuant to the terms of the Governing Instrument,
The controlling terms of the Trust’s Governing
Instrument defines the “Closing Date”, as October 27, 2006.
The SJC has definitively stated that where a foreclosing claimant relies upon a PSA to have “assigned” title, it must be shown that the entity purporting to “assign” such title [the “Depositor”]
David Belanger, on June 22, 2016 at 7:59 am said:
the SJC found that the historical ratio decidendi, and legislative intent was that to meet the statutory definition of the term “mortgagee” there must be a connection to the note and mortgage. Another incorrect “theory” advanced by the financial bar for the better part of a decade was that a borrower “lack standing to challenge an assignment of mortgage”. However, when this issue was squarely presented to the U.S. Court of Appeals for the First Circuit, that Court found that this “theory” could not stand muster where an assignment was “void”, as a Massachusetts mortgagor finds herself in a unique position, that would leave her without any ability to defend the title to her home, if not able to question an entity without contractual standing to utilize an extra judicial remedy,
“As applied here, these considerations raise a potential question as to whether the plaintiff’s standing is jeopardized by the prudential concern that a litigant should not normally be permitted to assert the rights and interests of a third party. With this in mind, several courts have ruled that mortgagors lack standing to challenge mortgage assignments because they are neither parties to nor third-party beneficiaries of the assignments. See, e.g., Oum, 842 F.Supp.2d at 413 (citing Edelkind v. Fairmont Funding, Ltd., 539 F.Supp.2d 449, 453-54 (D.Mass.2008)); Wenzel v. Sand Canyon Corp., 841 F.Supp.2d 463, 477-78 (D.Mass.2012). We think that these cases paint with too broad a brush. It is true that a nonparty who does not benefit from a contract generally
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lacks standing to assert rights under that contract. See, e.g., Almond v. Capital Props., Inc., 212 F.3d 20, 24 & n. 4 (1st Cir.2000); Cumis
Ins. Soc’y, Inc. v. BJ’s Wholesale Club, Inc., 455 Mass. 458, 918 N.E.2d 36, 44 (2009). But a Massachusetts real property mortgagor finds herself in an unusual position because of two key facts. First, as explained below, a Massachusetts mortgagor has a legally cognizable right under state law to ensure that any attempted foreclosure on her home is conducted lawfully. See G.L. c. 183, §21; id. G.L. c. 244, § 14. Second, where (as here) a mortgage contains a power of sale, Massachusetts law permits foreclosure without prior judicial authorization. See Eaton, 969 N.E.2d at 1127. Thus — unlike an ordinary debtor who could challenge an assignment as a defense upon being hauled into court by the assignee seeking to collect on her debt, see 6A C.J.S. Assignments § 132 (2012) — a Massachusetts mortgagor would be deprived of a means to assert her legal protections without having standing to sue. As such, we hold only that Massachusetts mortgagors, under circumstances comparable to those in this case, have standing to challenge a mortgage assignment. Culhane v. Aurora Laon
Services of Nebraska, 708 F. 3d. 282, 290 (2013)
The above reasoning applies with equal force to claims made under a PSA, where the failure to transfer assets under the controlling terms of this Trust Governing Instrument creates a void [not ”voidable”] assignment, and thus represents a challenge “qua mortgagee”. Indeed, Culhane was correctly cited to and relied upon by the Housing Court Judge, where formulating his well reasoned and legally sound decision, related to the
PSA
A. THE SJC IN IBANEZ CLEARLY SPOKE TO THE PRECISE
ISSUE PRESENTED TO THIS COURT REGARDING THE PSA
David Belanger, on June 22, 2016 at 7:54 am said:
COMMONWEALTH OF MASSACHUSETTS
COURT OF APPEALS
NO. 2015-P-1259
U.S. BANK, N.A., AS TRUSTEE FOR RASC 2006KS9
Plaintiff-Appellant
V.
WENDY BOLLING
Defendant – Appellee
ON APPEAL FROM A FINAL JUDGMENT OF
THE WESTERN HOUSING COURT
APPELLEE’S OPENING BRIEF
______________________________________________________
every one go and read this case, homeowners have right to challenge th epsa and assignments, to it being void on a securited mortgage trust